This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Wednesday, November 30, 2011

Brendan O'Connor Minister for Privacy and Freedom of Information opened the Australia and New Zealand International Association of Privacy Professionals annual conference in Melbourne today-read the Media Release and the speech (when someone fixes the link). Apart from telling us there were more than 70 submissions in response to the Issues Paper on a proposed statutory cause of action for serious invasion of privacy, that submitters have various views, and the importance and complications in getting the balance right (all from the media release) there isn't much in this.

By my count of the more than 70 submissions received only 43 have been published-most twice, some more than that. Presumably not for publication are some submissions by individuals that detail what are alleged to be serious invasions of privacy. That's fair enough.

But how to explain no published submission to date-the extended cut off was last Friday- from the media coalition Australia's Right to Know, or members News Ltd or Fairfax Media?
(See the update below before making anything of this.)

Chris Merritt wrote last Friday in The Australian (behind this paywall) about a News submission that argued there is no need for a new way to sue for privacy, predicted
unintended consequences if a statute emerges, and claimed two key supporters, the Australian Law Reform Commission and the Victorian
Law Reform Commission, misinterpreted a leading case on privacy law to support the case for action. But no link there to the submission and nothing on the submissions page either. Surely an explanation ( late? a stuff up?) other than that they (and other media organisations missing from the list so far) lodged a confidential submission?

Update:a raft of new submissions have been posted since Wednesday- now up to 59 including a submission from News Limited, a separate joint News/SBS submission, and a submission by the Media Entertainment and Arts Alliance

The across the board extra 2.5% efficiency dividend for 2012-13 (on top of the existing 1.5%, an increase this year from 1.25%, planned to be "temporary" and in place for two years) announced as part of yesterday's budget cuts won't apply to a number of "smaller agencies" including courts and tribunals such as the Administrative Appeals Tribunal. But other agencies that play an important transparency and accountabilty role- notably Office of Australian Information Commissioner, Ombudsman and Auditor General-didn't make the exception list. The savings won't be achieved by cutting back on the tea and bikkies, now long gone, and seem certain to impact negatively on capacity. The Government turned down last year a parliamentary committee recommendation made two years previously that would exempt the first $50 million of appropriations thus shielding small agencies such as these from automatic cuts. And gave the Opposition stick in April for proposing a 2% efficiency dividend.

Tuesday, November 29, 2011

Public access to information about work related matters concerning a public servant and the extent to which this raises exemption or grounds for refusal issues concerning disclosure of personal information is always a freedom of information matter of interest-well, mainly to public servants of course.

Assistant Information Commissioner Henry decided the information was not exempt and disclosure would not be contrary to the public interest, drawing a distinction between routine and non routine personal work information:

Monday, November 28, 2011

Congratulations to all winners of 2011 Walkley Awards for Excellence in Journalism. The award for Most outstanding contribution to journalism to WikiLeaks (and the response from Julian Assange via video bucketing the Prime Minister) is attracting plenty of attention here and around the world as debate continues about whether what WikiLeaks does is journalism.The Gold to Sarah Ferguson and colleagues at ABC Four Corners for the program "A bloody business" recognises the big impact of this story. The award for Investigative journalism to Richard Baker and Nick McKenzie of The Age who utilised Freedom of Information among other means to expose an international network of corruption involving a
subsidiary of the Reserve Bank of Australia deserves special mention.

WikiLeaks and journalism

The Walkley Foundation and the Media Entertainment and Arts Alliance have no doubt that WikiLeaks is journalism:

This year’s winner has shown a courageous and controversial
commitment to the finest traditions of journalism: justice through
transparency... This innovation could just as easily have been developed and nurtured by any of the world’s major publishers – but it wasn’t. Yet
so many eagerly took advantage of the secret cables to create more
scoops in a year than most journalists could imagine in a lifetime. While
not without flaws, the Walkley Trustees believe that by designing and
constructing a means to encourage whistleblowers, WikiLeaks and its
editor-in-chief Julian Assange took a brave, determined and independent
stand for freedom of speech and transparency that has empowered people
all over the world. And in the process, they have triggered a
robust debate inside and outside the media about official secrecy, the
public’s right to know, and the future of journalism.

This is likely to play into the current debate in Australia about a range of media related. issues. NSW Attorney General Greg Smith who showed himself to be an old media
man in recently questioning whether even Crikey is engaged in journalism may have choked on his
rice bubbles when he saw this. His NSW shield law (nor that proposed by WA) doesn't define "journalism" thus leaving it to the courts the testing of meaning in the contemporary context.

Commonwealth shield law defines journalism and journalist in broad terms likely to cover WikiLeaks and Assange in the event of interest in an Australian source. (Correction 1 December 2011: it defines journalist and news medium but not journalism.) Whether this law would enable him protect a source of the kind of information published is perhaps moot if the sources are truly anonymous.There is a public interest exception unlikely to protect identity where information of national security significance is involved. And plenty of criminal law relevant to such a source but virtually no whistleblower protection at the Commonwealth level despite years of promises.

On the broader front all sorts of other words have been used to describe WikiLeaks. After initial over the top and prejudicial comments by the Prime Minister and Federal Attorney General McClelland referred to by Assange last night, the attorney confirmed no crime had been committed at that stage but “the Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.”

However even in the US where differences prevail the weight of considered opinion seems to be that WikiLeaks is a journalistic entity or an instrument of journalism and part of the reality of the media these days. John Naughton writing recently in The (UK) Observer cites a paper by Professor Benkler of Harvard that supports this view, criticising denial by some that "in the end, WikiLeaks and traditional news
organisations are in the same business – namely publishing, in the
public interest, information that powerful agencies in society wish to
keep secret."

Investigative journalism

Richard Baker and Nick McKenzie of The Age were rewarded with the Walkley for producing "more than 60 exclusive
reports on Australia’s first case of foreign bribery, a story they
originally broke in May 2009 when they revealed that Securency, a
subsidiary of the Reserve Bank of Australia (RBA), had paid
million-dollar commissions to win global banknote contracts.. Baker and McKenzie’s investigation has involved extensive source
cultivation, Freedom of Information requests and the painstaking
uncovering of a complex money trail which spans Asia, Europe and Africa.
Their reporting has sparked raids, arrests and contributed to charges."

FOI may have been a friend but was also a frustration at some stages of their journey.

Commiserations to those nominees who missed out in this category including last year's winner Linton Besser of the Sydney Morning Herald who continues to use FOI to advantage.

Friday, November 25, 2011

The task of ensuring appropriate standards of transparency and accountability apply to the Australian Parliament has been duck shoved for years but is now in the hands, in part at least, of Speaker Peter Slipper. The comments in response to an article in his home town daily about his new well remunerated job are instructive.

He last featured here a year ago when Bill Hoffman of the said Sunshine Coast Daily was trying without success to get information about an investigation into his use of entitlements. Tony Wright in the SMH today provides some high (?) points:

Last year he was forced to repay $14,000 for wrongful use of
entitlements, including travel for his family. In 2003, the Finance
Department demanded he repay $7785.67 for breaching the family travel
entitlement. His phone bill
alone for half of 2009 was $14,764, which was more than that of Kevin
Rudd, who was prime minister at the time. His cabs cost $16,000 over
just six months, plus $8600 on private-plate cars (it was later revealed
his son was spending time driving the taxpayer-funded car). All up, in the last six months of 2009 - a period that caught
the eye of the Finance Department - Slipper's upkeep as a humble
backbencher, including the running of his electoral office, cost the
public $640,562. Slipper's expenditure rolled along last year, when he
attracted notice for spending $30,000 on family travel, and also when he
took a 43-day overseas tour, which he explained was on parliamentary
business."

Parliamentary entitlementsA broad range of concerns regarding transparency and accountability for entitlements and expenditure for and on behalf of members and senators were canvassed at length here last year.

The Belcher committee recommendations addressed some of these issues. Two were acted upon, the rest shipped off to the Remuneration Tribunal and have not been heard of since.

Minister Gary Gray whose responsibilities include parliamentary integrity hasn't said a word on the subject since passing the parcel to the Remuneration Tribunal. Update: This recommendation from the committee has been kicking around somewhere out there unaddressed since the committee concluded its work in April 2010:

That the Special Minister of State, on the advice of the Department of Finance and Deregulation, table in the parliament: (i) the name of any sitting or former senator or member who has not substantially complied with a request for information about an alleged entitlement misuse within a reasonable time (for example, 28 days) (ii) the outcome of the investigation into the complaint, and (iii) regular reports setting out each senator’s and member’s compliance with the requirement for certification that entitlements have been accessed in accordance with the relevant legislation, including any justification given by the senator or member for non-compliance with the requirement.

Wednesday, November 23, 2011

The National Information Policy Conference in Canberra last week drew a sell out crowd of 270 and had an interesting vibe as well as some interesting presentations. Overall the tone of discussion about access to information issues, the duty to treat information as a national resource and examples of some government agencies being responsive in a variety of ways, with Freedom of Information just part of the bigger picture, was a far cry from the FOI-secrecy battleground of just a few years ago. Not that that battle is entirely a thing of the past.

Some of the papers and presentations have been posted on the Australian Information Commissioner's website. One of those, Senator Faulkner's reflections on the Freedom of Information reforms had some listeners hearing what they thought was a little stepping back from the open government gusto of 2008-2009. In fact his remarks then and now simply reflect the inherent tensions in balancing openness and other public interests. Another of interest was the presentation by David Glynne Jones of DJG Consulting on Information Governance-an idea whose time in the public sector has surely arrived.

At the same session and right in this groove Tony Corcoran Asssistant Secretary Freedom of Information and Information Management gave a terrific run down (not yet posted) on (relatively) new thinking in Defence that brings together various information management and disclosure threads including FOI in a service context. In answer to a question about the result of this branch assuming responsibility for FOI from a legal area, Corcoran said compliance with statutory time frames had gone from 12% previously to 100% currently, reinforcing my view that Legal should provide advice when required, not control and manage the FOI function these days.

Ann Steward Australian Government Chief Information Officer, AGIMO gave a positive and encouraging account of progress on Gov 2.0 implementation (not yet posted). The best practice examples (ditto) from the Australian National Data Service (until now not known to me) and others in the final session were also eye openers.

The lack of time for questions and discussion at several sessions was disappointing. Tom Burton of the Australian Media and Communications Authority, poacher turned gamekeeper, on Engaging the Public gave a spinner's razamataz version, rather than what engagement really should involve (link to presentation). And surprisingly Senator Kate Lundy's presentation on Public Sphere which should have been a good story had just a touch of cruel and unusual punishment for this listener at least.

The only oversell was that the conference "would be an opportunity to contribute to... the development of a National Information Policy for Australia", which it wasn't. But on all other fronts an enjoyable and interesting first for what is likely to be an annual event.

A last minor gripe - the name tag with name only. In the absence of detail whence we came and an attendance list the scope for instant recognition or passing interest was limited. If it reflected concern about privacy it was a step too far, and easily addressed by ticking a box on the registration form.

I attended at the invitation of the Office of Australian Information Commissioner and was grateful for that opportunity. And got out of town just ahead of President Obama's caravan-he still doesn't know what he missed.

Three Liberal party state governments are taking a different line from the Commonwealth on important aspects of shield law protection for journalist sources, the most recent instance in Western Australia where Attorney General Christian Porter has introduced the Evidence and Public Interest Disclosure Legislation Amendment Bill. The bill will amend the Evidence Act 1906 to include shield law provisions and the Public Interest Disclosure Act 2003. The whistleblower changes would extend protection to those who go public as a last resort and have been welcomed by the leading expert Professor AJ Brown of Griffith University. WA is set set to join NSW and Queensland by including this element in the whistleblowing regime.

On shield law protection, a key point of claimed difference between the Commonwealth and the states is what constitutes journalism and who qualifies as a journalist, although the extent of the difference in a practical sense is unclear. Provisions in the WA bill follow to some extent the NSW Evidence Amendment (Journalist Privilege) Act which received assent in June.

The Victorian Government foreshadowed similar moves in March
but is yet to introduce legislation.The issue was in the news there last week with Cameron Stewart of The Australian in the witness
box being asked about the identity of
sources regarding details given to him about an AFP terrorist raid- sources unlikely to be protected by the privilege because of a national security exception, even when a shield law is passed.

In addition to the scope issue, the Western Australian bill would create a number of other exceptions to the general right to claim journalist privilege. One is where disclosure would be an offence under another law. This brings into play the draconian s 81 of the WA Criminal Code which creates a crime for the broad and general offence of unauthorised disclosure of information. The government says the exception is necessary in order to protect "sensitive information" and the bill narrows the effect of s 81 for the purposes of shield law protection to information regarding matters of serious misconduct that would justify a public interest disclosure. (Just as well as the Court of Appeal ruled recently that s 81 imposed a duty not to make a disclosure to unauthorised persons
of information relating to the business of a government department or the contents of any official
papers
including internal reports or documents of that department-decision at 180)

A journalist however won't enjoy the benefit of the privilege where s 81 as modified by the bill applies, unless the confider has, prior to disclosing to the journalist, previously disclosed the information to the chief executive or other designated public authority in accordance with the Public interest Disclosure Act.

In WA journalists (whoever they are) and those in government who talk to them (they know who they are) will need to do their homework before celebrating the passage of this legislation-or claiming to be clear about what it covers.

A pity the opportunity isn't being taken to do something about s 81, limiting the offence to circumstances where an unauthorised disclosure is likely to cause harm to a serious identified public interest. (As recommendedby the ALRCto the Federal government almost two years ago in respect of s 70 of the Crimes Act -on which not a word since.)

Another exception to journalist privilege proposed for WA is where there have been unnecessary and unwarranted invasions of privacy by
journalists or other persons who provide information to journalists. Is that the sound of some jumping from the building in Holt St?

There is nothing necessarily sinister or untoward in the Delimiter story reported by Renai LeMay under the headline (Commonwealth) "Govt delays multiple tech FOI requests", although LeMay is sceptical about the need for consultation before disclosure, concluding:

The Freedom of Information reforms enacted by the Gillard Government
have unlocked the public sector’s war chest of secrets a little further.
But the Federal Government still has a long, long way to go before it
could, in any sense, be described as transparent. I’d like to see a
bigger effort made here. The Government should not withhold information
from the public just because it’s potentially embarassing. If the
information concerned was so commercially sensitive, it would probably
not have been disclosed to the Government in the first place.Conroy’s department and his office have generally been reasonably
transparent over the time that I have dealt with them as a journalist.
However, over the past half-decade, I have found it increasingly
difficult to obtain information directly from the AFP or the
Attorney-General’s Department about sensitive matters. I would not go so
far as to say there is a culture of secrecy at these organisations;
there are many reasons for them to be wary when dealing with the press.
But at the moment, they definitely need to open the kimono a little
further on matters of public interest, in my opinion.

Prompting the following comment from "Dessy" also claiming to speak from experience. I'm sure some FOI applicants test more than just the patience of those on the other side, but this supports LeMay's suggestion that the culture change program still needs a kick along:

FOI is a big hassle/ administrative cost for the Govt. Sure, the
occasional request uncovers something semi-interesting, but from my
experience, FOI is an area dominated by nutjob conspiracy theorists
asking stupid time consuming questions that actually end up costing the
taxpayer a huge amount of wasted money for all the resources that are
spent in administering the FOI Act. Also by journos wanting stuff
yesterday, so they can twist information into commercial property. All
that said, Australia has one of the most open Governments in the
westernised world.

Monday, November 21, 2011

Followers of blue/red book disclosures will be interested to see the NSW Information Commmissioner has informed the Sydney Morning Herald, as the complainant, that parts of the brief prepared for the incoming O' Farrell government last May consist of "entirely factual material" and are therefore outside the scope of information prepared for cabinet, the disclosure of which would be contrary to the public interest. The government is yet to respond to what amounts to a recommendation from the commissioner that the information be released. Yes, poor form for a government that claimed to be interested in improving transparency.

Friday, November 18, 2011

AP-Associated Press- has released a report after testing the freedom of information promise in over 100 countries including Australia. It appears that the requests for responses toThe Questions about terrorism arrests and convictions were not submitted as formal FOI applications. AP put them here to the
Attorney-General's Department, Australian Federal Police, and Commonwealth Director of Public Prosecutions. Answers in writing with a list of names, dates, cases and outcomes were forthcoming after 83 days.As an aside, an FOI applicant couldn't expect requested information like this to be provided in the neat spreadsheet that AP posted here as the original response. More's the pity.

In the spirit of transparency AP has made the story available to anyone, along with all the data, videos, interactive, and related coverage. "For the first time in our 150 year history we’re putting everything up on a Facebook page for anyone to use."

There's a terrorism related story in this for Australian newshounds. Thanks toMartha Mendoza of AP for the heads up.

From AP's world wide assessment:

"The promise is
magnificent: More than 5.3 billion people in more than 100 countries now
have the right - on paper - to know the truth about what their
government is doing behind closed doors. Such laws have spread rapidly
over the past decade, and when they work, they present a powerful way to
engage citizens and expose corruption.

... In a single week in
January, AP reporters submitted questions about terrorism arrests and
convictions, vetted by experts, to the European Union and the 105
countries with right-to-know laws or constitutional provisions. AP also
interviewed more than 100 experts worldwide and reviewed hundreds of
studies.

Among its findings:

- Only 14 countries answered in full within their legal deadline. Another 38 countries eventually answered most questions.

-
Newer democracies were in general more responsive than some developed
ones. Guatemala sent all documents in 10 days, and Turkey in seven. By
comparison, Canada asked for a 200-day extension, and the FBI in the
United States responded six months late with a single sheet with four
dates, two words and a large blanked section.

- More than half the countries did not release anything, and three out of 10 did not even acknowledge the request.

-
Dozens of countries adopted their laws at least in part because of
financial incentives, and so are more likely to ignore or limit them.
China changed its laws to join the World Trade Organization in 2001, and
later expanded them beyond trade. Pakistan adopted its 2002 ordinance
in return for $1.4 billion from the International Monetary Fund. Neither
country responded to the AP's test.

"Having a
law that's not being obeyed is almost worse than not having a law at
all," says Daniel Metcalf, the leading U.S. Freedom of Information
authority at the Justice Department for the past 25 years, now a law
professor at American University. "The entire credibility of a
government is at stake."

Monday, November 14, 2011

The Australian and NSW information commissioners both have discussion papers out for comment in connection with current reviews of charges for (Commonwealth) FOI and fees and charges for (NSW) GIPA access applications. The Commonwealth abolished application fees from 1 November 2010, and with some exceptions retains the charge regime unchanged for many years. NSW in essence retained the application fee ($30) and charges at the level set in 1989.

The OAIC paper reflects the Minister's terms of reference and provides comprehensive background and comparative information. Some might see the discussion being framed to some extent as a close examination of the case for an increase in charges and by how much. The first points as they appear in the Executive Summary are all about cost and revenue:

The scale of charges set in the Freedom of Information (Charges) Regulations 1982 (the Charges Regulations) is not subject to indexation and has not increased since November 1986.

Between the commencement of the FOI Act on 1 December 1982 and 30
June 2011, Australian Government agencies have reported a total cost of
$498,364,739 to process the 906,639 FOI requests received during that
period. The majority of requests are for documents containing personal
information: in 2010–11, requests for personal information accounted for
82.63% of all requests.

Since 1997–98, the cost of administering the FOI Act has steadily
increased. However, the total amount of fees and charges collected has
consistently been less than 5% of the yearly cost of administering the
FOI Act, ranging from 0.33 % (1982–83) to 4.91% (1994–95) with the
yearly average at approximately 2%.

The volume of charges collected has decreased significantly from 78.72% of the charges notified in 1991–92 to 9.60% in 2009–10.

The closing date for comment is 21 November. Professor McMillan will be conducting public and agency consultations.

The focus of the NSW Consultation Paper is "on learning how government agencies apply the fees and charges provisions in practice, whether they consider the provisions to be working effectively, and inviting suggestions for improvement, keeping in mind the objects of the GIPA Act." The OIC has released a separate survey for members of the public, the media and non-government agencies.

I don't see a reference in the paper to the Premier's pre-election commitment (among others) to abolish application fees. Submissions close 31 December 2012.

Both reviews hopefully will look at related matters such as
whether the cost of dealing with requests by an individual for his/her personal information-a key element of privacy law- should be counted by agencies as an FOI cost. And other issues such as

whether
the administrative cost of keeping track of time and managing a complex
array of charges is justified by the return, or other reasons,

the cost/ benefit of maintaining or in the Commonwealth's case reimposing an application fee and abolishing charges, following a Tasmanian lead,

ways to reduce cost through more pro-active disclosure.

efficiencies in processing including through more and better the use of technology, and

how poor/overly defensive decision making that results in high cost review applications can be improved.

Friday, November 11, 2011

New Matilda has published details from the 2009 Department of Immigration and Citizenship (DIAC) contract with British multinational Serco, obtained through an FOI request by London based freelance journalist and blogger Paul Farrell. Parts of the contract as executed have been withheld including some parts that the decision maker apparently considers should be released, but can't be released at this stage as Serco objects and has rights of review. (The decision notice is unclear about what is in this category.)

New Matilda separately has published what it says is a leaked version of the contract, providing an opportunity for some interesting analysis of the FOI decision by those with the time and interest. However that copy is marked throughout as "Public Release Version" so it may be incomplete in some respects.

The pages of the executed contract released under FOI are all marked "Commercial in Confidence."

While
acknowledging the Freedom of Information request raised some complex
issues, the application was dated 14 December 2010, the response 2
September 2011. Some aspects are still to be determined. Presumably the
absence of any reference to charges was because the request was not
dealt with within time, or additional time granted by the Australian
Information Commissioner. And some of the following claims are at least
open to question.The DIAC decision maker claimed exemptionfor information:

Wednesday, November 09, 2011

Victorian Civil and Administrative Tribunal Deputy President Judge Hampel in Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876 decided the documents in dispute were internal working documents and disclosure would be contrary to the public interest. Refusal of access was necessary in order to protect the independence and quality of advice of public servants. The automatic acceptance and weight given to this argument, and some principles listed in the decision as accepted parts of the law in Victoria illustrate the "old style" FOI practiced in that state. Some of this just wouldn't fly elsewhere particularly in the FOI reform jurisdictions.

At the risk of repetition, Victorian FOI could do with a major legislative overhaul.

Monday, November 07, 2011

The NSW Ombudsman has transitioned over the last year from the leading role of many years in dealing with Freedom of Information complaints, to cleaning up those on hand on 1 July 2010, or new, concerning FOI applications made before commencement of the replacement Government Information (Public Access) Act . The Information Commissioner is responsible for complaint investigation and external review for applications under the new act.

The Ombudsman's 2010-2011 Annual Report (45-46) includes four case studies from investigations during the year, two concerning complaints by the then opposition leader, now Premier, regarding decisions by the premier's department to refuse access to ministerial advisers' salary and redundancy payments. The approaches displayed are (hopefully) now somewhat ancient history.

We have this glimpse of spinner's spinning:

During our investigation of the complaint, one of the media advisors argued that the release of her salary details would have an adverse impact on her spouse’s financial affairs. She maintained that if the details of her salary became known, it would hamper her spouse’s ability to ask for increased rent from tenants at their investment properties. Another media advisor argued that because she directed senior staff of a government agency, the release of her salary would be embarrassing to her. We expressed concern to the department about ministerial media advisors directing agency staff.

And this example of poor appreciation of the public interest.

The department refused to provide specific information about redundancies paid to staff previously employed in a ministerial office, who were then re-employed with either the same or a different Minister.

"The department provided an aggregate figure of $705,734 representing redundancies paid to 19 staff between 2005 and 2010, but refused to provide the amounts of individual redundancies, stating this would be an unreasonable disclosure of the staff’s personal affairs...In our view there was an overriding public interest in the disclosure of the details of all individual payments of public funds, particularly in the several cases where a ministerial employee was re-employed by the same office or re-employed in another ministerial office not long after receiving a redundancy payment. As a general principle, it seemed to us that information about the remuneration paid to a public official should not be treated as if it were a matter of complete secrecy

Presumably the Premier has had a quiet word about these world views since assuming office in March.

Sunday, November 06, 2011

All he has to do is get to Canberra on 15 November, one day earlier than scheduled, to attend the Australian Information Commissioner's National Information Policy Conference "Public Sector Information: A National Resource" there that day. And stay in Australia one day longer than planned to attend The Centre for Legal Governance at Macquarie Law School and the Australian Academy of Law conference Tomorrow's Law: Disclosure of Information-Balancing Public and Private Interests in Sydney on 18 November. I'm on the panel looking at legal developments relating to whistleblowing. Other sessions will cover censorship and
classification, and the interaction between journalism and the public
interest.

The adequacy of the search by an agency for documents or information relevant to a freedom of information application is often a contentious issue.

Older FOI legislation such as the Commonwealth and Victorian acts are silent on what steps an agency must take to attempt to locate relevant material but a reasonable search (see OAIC Guidelines) is the standard. In the Commonwealth arena, whether "all reasonable steps" were taken is an issue on review where a decision to refuse access has been taken under s 24A (Chu v Telstra).

Justice Finn in Chu noted that while" an applicant might be able to help an agency in its attempt
to locate a document, that person is hardly to be disadvantaged
if he or she
cannot." An applicant will often find it difficult to dispute agency claims that all reasonable steps were taken.

In a
recent Victorian case the applicant pointed out deficiencies in the search process, to no avail, until the matter came beforeDeputy President Judge Hampel in the Victorian Civil and Administrative Tribunal. In Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876, because of what had happened, she took the unusual step of awarding costs to the applicant despite ruling for the respondent agency on the substantive issue, that the documents in dispute were exempt.

82. I have already expressed the view that the
respondent’s searches were woefully inadequate.
The applicant was in a
position to demonstrate to the respondent, and did so, in precise detail, that
its searches were inadequate.
It did all that it could have, up until the time
of the hearing to bring to the respondent’s attention to the deficiency of
its searches and to request it to conduct further searches and to produce the
documents sought in the request. That included making
the second FOI request to
the Minister. I am satisfied that request was only made because of the
inadequacy of the original search,
and the inadequacy of the Department’s
response when taxed with that by the applicant.

83. The
respondent’s conduct in my view is unjustifiable. When I indicated that I
would order the respondent to conduct further
searches, the respondent, whilst
maintaining its formal reliance on Burton, undertook to conduct those
searches. Within a week, it had identified, and provided a further 1350 pages,
which clearly fell within
the terms of the search. Only six documents were the
subject of exemption claims from this further search. Clearly, the bulk of
the
material should have been identified in a timely fashion after receipt of the
request, and a more cooperative or responsive attitude
to the applicant should
have been displayed from the time it first raised its concerns about the
inadequacy of the searches.

Tuesday, November 01, 2011

The 2010-2011 Annual Report of the Office of Australian Information Commissioner, covering activities since the office was established on 1 November 2010, naturally enough is about the office-a separate report on the operation of the Freedom of Information Act with agency statistics for 2010-2011 is yet to be tabled in Parliament and released publicly. The report contains plenty of detail about this busy first eight months regarding organisation issues, FOI, privacy, and the work in progress, development of government wide information policy. Some points of interest:

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.